The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award ….

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02

Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.

For injuries to upper extremities, Appendix A provides as follows:

Loss of Movement/Functions

The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures will be proportional to the amount of movement or function that is lost based on clinical findings, as a percentage of the assigned ratings for complete joint immobility. As there are great variations from person to person in ranges of movement, when there is a completely normal extremity to compare with, loss of movement can be determined by comparing the movement in the joint being examined with the movement of the normal joint on the opposite extremity.

When there is not a normal extremity with which to compare, the following will be considered as guidelines for normal ranges of movement for upper extremity joints:

Shoulder:

Forward flexion 150 degrees

Backward elevation 40 degrees

Abduction 150 degrees

Adduction 30 degrees

Internal rotation 40 degrees

External rotation 90 degrees

Worker’s Position

The worker was self-represented at the hearing and was accompanied by a friend. Also appearing at the hearing in support of the worker was her registered massage therapist who specializes in treating lymphedema. The therapist provided the panel with useful information regarding lymphedema, its effect on people suffering from the condition, and treatment options.

The worker stated that the accident resulted in emergency surgery and a partial shoulder replacement. In October 2008, she was assessed and awarded a 15% PPI award. This was prior to the appearance and diagnosis of lymphedema. She was reluctant to agree to this assessment but was told by the WCB that she could request a reassessment every two years.

In May 2012, the worker did request a reassessment as she felt her situation had worsened. Her pain levels were much higher and her mobility was much less. The worker felt that the reassessment was not as comprehensive as she expected nor as involved as the initial assessment. The worker specifically disagreed with the WCB medical advisor's comment that when comparing two arms visually, increased girth on the right side was not noticeable. As a result of the assessment, the WCB granted the worker an additional 1% PPI award of $1,060.00 in June of 2012.

The worker's position was that she had fallen through the cracks in a number of areas. Her original financial settlement was based entirely on a loss of mobility and did not factor in the chronically worsening condition of lymphedema and did not appropriately reflect the enormity of what she considered to be the loss of use of a limb. A cursory, cosmetic-based perception of the size of her arm was the only determining factor in deciding her most recent settlement. The worker stated that she would struggle in the future on a daily basis with the pain and swelling and felt that the long term effects of her permanent disability had not been reasonably addressed by the WCB.

The panel notes that the worker expressed other concerns regarding future entitlements to WCB benefits such as lymphedemic massage and wage loss benefits. The worker was informed that the panel's jurisdiction was limited to the appealed issues regarding the calculation of her PPI award.

Analysis

The issue before the panel is whether or not the 1% increase and the financial value of the worker's PPI award are correct. In order for the worker's appeal to succeed, the panel must find that the worker's PPI award was not correctly calculated in accordance with the terms of the Policy. We are not able to make that finding.

Unfortunately, while we are sympathetic to the extent of the worker's condition and the effect the lymphedema has had on her life, the panel's ability to determine the amount of a PPI award is limited by the terms of the Policy. There is nothing in the PPI schedule which provides a rating for lymphedema. The only provision in the schedule which addresses the lymphatic system is a 1.0% rating for the loss of a spleen. We are unable to rely on this provision to support an increase to the worker's PPI award.

The panel has considered whether the worker is entitled to any change in her rating for loss of passive range of motion in her right shoulder. We could find no error made in either the measurements of her right shoulder range of motion or in the calculations. It appears that there was a slight worsening of her measured range of motion. While on October 28, 2008 the combined percentage impairment was 13.5%, by May 29, 2012, the combined impairment changed to 13.9%. Unfortunately, the change of 0.4% was minimal and was not, on its own, sufficient to cause an increase in the worker's PPI award.

With respect to an impairment award for cosmetic deformity, an assessment was performed by the WCB medical advisor based on a judgment rating. The Policy provides for a rating for disfigurement and provides as follows:

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.

The rating for disfigurement is done by the Board’s Medical Department and the degree of disfigurement is determined on a judgmental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical awards for disfigurement are between 1 and 5%. In order to maintain consistency in awards for disfigurement, and to make the awards as objective as possible, Medical staff will make reference to the folio of previous disfigurement awards established as policy by Board Order No. 67/89 and maintained by the Director of Benefits Division as prescribed in Board Order 67/89.

The WCB medical advisor concluded that the increased girth on the right arm was not noticeable and did not warrant a cosmetic impairment. The panel also notes that the evidence at the hearing was that the size of the worker's right arm fluctuates and that while the lymphedema was permanent, the effects (i.e. the swelling) are treatable and can be reduced, particularly given that the worker's lymphedema was considered to be stage 1. As such, there is no permanent change in girth at this point in time. In view of this information, the panel accepts the assessment of no change in the girth of the worker's right arm that would warrant an increased cosmetic impairment.

The medical advisor did allow for an increase in cosmetic impairment from 1.0 % to 2.0% based on the presence of the pressure stocking, which the worker advised she wore every day. We see no reason to vary from this cosmetic assessment by the WCB medical advisor.

As a result, the panel agrees that the WCB correctly calculated an increase in the worker's PPI award of 1%. The proper financial value to be attached to a 1% increase is $1,060.00. The panel notes that although there was also a 0.4% increase in the percentage impairment for loss of mobility in the right shoulder, this is insufficient to result in a change in the financial award. If the worker's right shoulder range of motion continues to deteriorate, she may be entitled to a further PPI award in the future.

The panel acknowledges the worker's submission that because of the lymphedema which developed as a result of her compensable shoulder surgery, the worker cannot use her right arm the way she used to. She lacks the strength she once had and also has to actively manage the swelling, pain and discomfort from her condition. The panel has sympathy for her situation but unfortunately, the change in her functional ability is not a factor taken into consideration when calculating the PPI award. We are constrained by the terms of the Policy.

The panel therefore finds that the worker's PPI award has been correctly calculated. The worker's appeal is dismissed.